People v. Powell

• Decision Date: 10 February 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Troy T. POWELL, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 385
81 A.D.3d 1307

The PEOPLE of the State of New York, Respondent,
v.
Troy T. POWELL, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 10, 2011.

916 N.Y.S.2d 386

Amdursky, Pelky, Fennell & Wallen, P.C., Oswego (Courtney S. Radick of Counsel), for Defendant-Appellant.

Donald H. Dodd, District Attorney, Oswego (Michael G. Cianfarano of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

MEMORANDUM:

81 A.D.3d 1307

Defendant appeals from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ) and petit larceny (§ 155.25). Contrary to the contention of defendant, he was not denied effective assistance of counsel based on defense counsel's allegedly improper cross-examination of a police investigator regarding identification evidence and procedures ( see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Defendant's contention involves a " 'simple disagreement[ ] with strategies, tactics or the scope of possible cross-examination, weighed long after the trial,' and thus [is] insufficient to establish ineffective assistance of counsel" ( People v. Adams, 59 A.D.3d 928, 929, 872 N.Y.S.2d 616, lv. denied 12 N.Y.3d 813, 881 N.Y.S.2d 21, 908 N.E.2d 929, quoting People v. Flores, 84 N.Y.2d 184, 187, 615 N.Y.S.2d 662, 639 N.E.2d 19). We further conclude that defense counsel's failure to call an expert witness did not constitute ineffective assistance of counsel inasmuch as defendant failed to demonstrate "that the expert's testimony would have assisted the trier of fact or that defendant was prejudiced by the absence of such testimony" ( People v. Loret, 56 A.D.3d 1283, 867 N.Y.S.2d 649, lv. denied 11 N.Y.3d 927, 874 N.Y.S.2d 12, 902 N.E.2d 446; see People v. Brandi E., 38 A.D.3d 1218, 834 N.Y.S.2d 895, lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199).

81 A.D.3d 1308

Defendant also failed to demonstrate a lack of strategic or other legitimate explanations for defense counsel's request for a circumstantial evidence charge, his request to charge criminal trespass as a lesser included offense of burglary or his failure to request a charge of criminal possession of stolen property ( see People v. Benevento, 91 N.Y.2d 708, 712-713, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Ramkissoon, 36 A.D.3d 834, 829 N.Y.S.2d 157). "[T]he evidence, the law, and the circumstances of [this] case...